Bill Of Rights Does Not Apply To Independent DA Investigation

Sergeant Mark Lopez was the chairman and president of the Scotts Valley Police Officers Association Charitable Foundation. A fellow officer, Dave Ball, was also on the board of the SVPOA. The SVPOA ran an annual fundraiser called “Cops and Rodders,” which raised funds to be distributed to local organizations and schools upon request. The funds were also used to award scholarships to college students.

In June 2012, Ball told the Department’s chief, John Weiss, that he suspected Lopez was embezzling funds from the SVPOA. Lopez had written a check for $146.51 to the Scotts Valley Water District to pay for his personal water bill. He had also written several $500 checks for a scholarship for his daughter.

Chief Weiss elected to have the District Attorney’s Office investigate the matter due to the potential criminal charges, as well as to have a neutral third party conduct the investigation. District Attorney Inspector George Rivera, working with fellow inspector Michael Roe, submitted a declaration documenting the investigation, which took place between June and December 2012.

Early in the investigation, Rivera and Roe met with Chief Weiss and Lieutenant Wilson to update the Department about their progress. Rivera asserted that “at no time during that meeting did Chief Weiss or Lieutenant Wilson attempt to control or direct the investigation.” Rivera told the officers that the district attorney’s office would act as independent fact finders and would not take direction from the Department. Rivera told the officers he would request their assistance when it was time to interview Lopez.

On October 5, 2012, the interview with Lopez proceeded as scheduled. Before speaking with Lopez, Rivera met with Lieutenant Wilson and requested that Lopez be disarmed due to the nature of their investigation. Wilson agreed and called Lopez in for the interview. Lopez complied with Wilson’s request. He did not have any prior notice that he was going to be interviewed that day. After Lopez came into the office, Wilson told him that investigators from the district attorney’s office wanted to talk to him. Wilson did not explain to Lopez that he was being investigated for embezzlement, and Lopez was not told why he was being questioned.

Once Lopez was seated, Wilson informed Rivera and Roe that he would be “right outside” if they needed anything and closed the door behind him. Lopez asserted that he felt he had no choice but to answer the questions posed by the two investigators because Wilson, his commanding officer, had taken his weapon and had directed him to sit. He also thought Wilson was outside the door. At no point during the interview was Lopez advised of his rights under California’s Bill of Rights.

The District Attorney eventually decided not to prosecute Lopez, but the City terminated him for embezzlement. Lopez challenged his termination, claiming the Bill of Rights was violated in the way he was interviewed.

The California Court of Appeals rejected Lopez’s lawsuit. The Court observed that the “POBRA is not applicable to all interrogations. It does not apply to an interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer, nor does it apply to ‘an investigation concerned solely and directly with alleged criminal activities.’

“The district attorney’s office has no authority to discipline or terminate Lopez, and is an outside agency not typically subject to POBRA. Lopez nonetheless insists that POBRA applies based on case law concluding that investigations conducted by independent agencies with significant involvement or assistance with the law enforcement employer are subject to POBRA. He asserts that the district attorney’s office colluded with the Department, rendering its investigation subject to POBRA. He claims POBRA was violated when the two investigators from the district attorney’s office failed to advise him of his rights under POBRA during the October 5 interview.

“Here, the district attorney’s investigators submitted sworn declarations that their investigation was independent of the Department. The investigators declared that they coordinated with the Police Department to facilitate Lopez’s interview out of safety concerns. Unlike our prior cases, there was no overwhelming evidence of coordination between the district attorney’s office and the Department. Lopez’s commanding officer, Lieutenant Wilson, did not threaten Lopez with discipline if he failed to comply with the interview.

“Nor did Wilson inform Lopez that he was not free to leave the premises until after he finished the interview with the district attorney’s investigators. Wilson ordered Lopez to come into the police station to be questioned, but he did so after the district attorney’s office independently requested assistance from the Department to coordinate the interview out of safety concerns. The district attorney investigators met with the Department multiple times, but the investigators declared that they did not take directions from the Department during the course of their investigation.

“We conclude, with the trial court’s finding that the investigation was independent and not a joint effort, it necessarily follows that the procedural safeguards afforded to Lopez under POBRA did not apply to the initial interview conducted by the district attorney’s office on October 5, 2012. POBRA does not apply to independent investigations conducted by outside agencies.”

Lopez v. City of Scotts Valley, 2015 WL 5692369 (Cal. App. 2015).